FOIA Update: Significant New Decisions

Significant New Decisions

In a decision clarifying the significance of factual information under the deliberative process privilege, the D.C. Circuit Court of Appeals ruled that a preliminary draft of the Air Force's official history of its early role in South Vietnam can be protected in its entirety under Exemption 5. Writing for the court, Circuit Judge Abner J. Mikva observed that "Congress enacted Exemption 5 to protect the executive's deliberative processes -- not to protect specific materials," and that exclusive "use of the factual matter/deliberative matter distinctions produced incorrect outcomes" sometimes. Accordingly, he focused "less on the nature of the materials sought and more on the effect of the materials' release," and relied on the reasoning of a prior "draft document" opinion, Russell v. Department of the Air Force, 682 F.2d 1045 (D.C. Cir. 1982). Even though the requested draft had been subject to numerous revisions, the D.C. Circuit squarely concluded that "the disclosure of editorial judgments -- for example, decisions to insert or delete material or to change a draft's focus or emphasis -- would stifle the creative thinking and candid exchange of ideas necessary to produce good historical work."

Irons v. FBI, 811 F.2d 681 (1st Cir. 1987).

The First Circuit Court of Appeals, in the first appellate court decision on the issue, emphatically held that a confidential source who agrees to serve as a witness in a criminal trial if necessary does not thereby waive his right to have his identity shielded under Exemption 7(D). Rejecting any such "potential witness rule," it refused to require disclosure of the identities of persons who cooperated with the FBI in its investigations under the Smith Act of members of the Communist Party, declaring that the FOIA's legislative history "in no way evinces an intent to hamstring investigative agencies or to rock the confidence of informants by requiring [such an] extravagant disclosure." Pointing to Senator Hatch's statements in the legislative history of the 1986 FOIA amendments for the proposition that those changes were "intended to broaden the reach of this exemption and to ease considerably a Federal law enforcement agency's burden in invoking it," the First Circuit concluded that the adoption of a "potential witness rule" would produce a "chilling effect on third parties [which] would significantly limit the prospective flow of information to the sovereign."

Providing a sharp reminder to agencies of the need to develop a good administrative record when deciding whether to release business information over the objections of a submitter, the D.C. Circuit Court of Appeals ruled in a "reverse FOIA" case that a disclosure determination which "provided no rationalization at the agency level" could not be supplemented in litigation with new theories for the agency's action. The trial court had found that GSA properly decided to release the submitter's unit prices in a government contract and in doing so permitted GSA to submit an affidavit explaining the rationale of its disclosure decision. However, the court of appeals, without addressing the actual merits of that determination, found fault with the trial court's reliance on the agency's affidavit, which it considered to be an improper post hoc rationalization. It found it necesary to reach this result because it could find "[n]o basis for GSA's determination" stated in the administrative record itself.

Curran v. Department of Justice, 813 F.2d 473 (1st Cir. 1987).

In a decision delineating the extent to which an agency must specifically describe in functional terms the categories of information withheld under Exemption 7(A), the First Circuit Court of Appeals has ruled that "some degree of generality" is not only "understandable," it sometimes is "probably essential." In fashioning such a standard, particularly in the circumstance of an "encyclopedic" request for records relating to a wide variety of international criminal matters, it recognized that the "categories must be distinct enough to allow meaningful judicial review, yet not so distinct as prematurely to let the cat out of the investigative bag." Most significantly, the First Circuit approved the inclusion of a broad "catch-all" category -- "other sundry items of information" -- to describe other records "of the same general kind, quality, and character as the better-described classifications," for which a more detailed description "would itself compromise the exemption."

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